from the unsurprising-news dept

You will likely know that we've been following the absurd threats that Roberto Escobar, brother to and former accountant for noted drug kingpin Pablo Escobar, launched at Netflix and the makers of its hit show Narcos. The threats kicked off as something of a publicity rights challenge, with Roberto Escobar demanding one billion dollars over a show in which he does not appear and is not named. Escobar has appeared to believe that his knowledge of the inner workings of the Escobar cartel somehow granted him authority over the show, while pretty much everyone else has agreed that the First Amendment would ultimately torpedo any lawsuit that might actually get filed.

But then things got even stranger. Escobar's lawyers began making noises that indicated the show was about to capitulate to the threats and demands. Meanwhile, the legal team on the other side were at the exact same time pointing out just how absurd and ficticious some of Escobar's claims were, such as that he had been using the term "Narcos" in conjunction with operating a website and providing computer gaming services on a computer network since 1986. For those of you who are too young to remember a time without a widespread internet, there basically was no such thing as a publicly facing website in 1986. Meanwhile, a location scout for the show was murdered in Mexico while scouting for the series' fourth season, with Escobar offering cryptic and coy commentary on the matter that bordered on suggesting he was somehow involved.

The Escobar fam doesn't usually back down from a fight, but it waved the white flag in a showdown with a TV powerhouse ... TMZ has learned. Escobar Inc. -- the company run by Pablo's bro, Roberto -- folded in the battle to cash in on the terms "Narcos" and "Cartel Wars." Both were made famous recently by the popular Netflix show, and the related video game.

According to new legal docs, the company filed an abandonment of its trademark application in November. We broke the story ... lawyers for "Narcos" called BS on Pablo for filing paperwork claiming ownership of "Narcos" in connection with a website.

As TMZ goes on to note, there is no official word if any kind of settlement was reached as a part of the trademark abandonment, but one has to assume that even if there were a settlement that the result would be considerably less than the billion dollars Escobar once dreamed he would receive. The laughably flimsy claims in the threat letters along with the firm protection of the First Amendment in the American court system ought to have precluded Netflix and the show's makers from having any fear over any of this. Indeed, given the sure status of the laws protecting them, I could argue that Escobar's saber-rattling only served as free publicity and advertising for the show.

Regardless, the one-time accountant for his brother's drug mega-operation has not managed to beat down Narcos.

from the that's-not-what-fixed-means dept

Just last month we joked about how confused the creator of PlayerUnknown's Battlegrounds, Brendan Greene, was when he claimed that there was no intellectual property for video games. That's completely wrong, and there are many, many cases to show that it's wrong. Yet... now there's a case that bizarrely, argues that video games don't get copyright (hat tip to Rick Sanders and Owen Barcala for flagging this one). The case is one that's been dragging through the courts for years, bouncing around, concerning publicity rights of former professional football players when used in EA games like Madden NFL.

The latest issue involves EA asking for the latest iteration of the case to be dismissed based on another ruling concerning NCAA basketball players and their publicity rights. In that ruling from April of this year, the 9th Circuit ruled (among other things) that federal copyright preempted state-based publicity rights claims. I don't want to dig too deeply into what all of that means, but suffice it to say that under the 1976 Copyright Act, the law says that federal copyright law now trumps all state copyright or copyright-like laws, and you can't hide behind some state law when federal law should apply. Here, the court said that the state-based publicity rights claims were blocked because of that, as the only issue should be covered under federal copyright law, where they would fail.

So, EA asked for this other case, filed by Michael Davis, to be dismissed, citing that ruling about preemption of publicity rights claims. But the district court judge, Richard Seeborg, has denied the motion, claiming that the ruling in that earlier case does not apply here. And he does so for... the most bizarre of reasons. Basically, he claims that large parts of video games don't get copyright... because they're interactive.

Here, game play in the Madden games is dynamic, interactive, variable, and in the hands of the consumer. Plaintiffs contend the avatars allegedly representing their likenesses even have performance characteristics representing plaintiffs’ own capabilities in their time as active NFL players. While recordings of actual football games are subject to copyright notwithstanding the independent actions of players during the course of the games, such recordings satisfy the requirement of copyright that the work be “fixed” in a tangible medium of expression. See Dryer v. Nat’l Football League, 814 F.3d 938, 942 (8th Cir. 2016) (“Although courts have recognized that the initial performance of a game is an ‘athletic event’ outside the subject matter of copyright . . . the Copyright Act specifically includes within its purview fixed recordings of such live performances.”); 17 U.S.C. § 101. The Madden games, in contrast, allow game play that is not fixed in a tangible medium of expression, and part of plaintiffs’ claims is that their identities are reflected in that game play.

So... while there's something compelling about this particular reasoning for those of us who believe copyright has been stretched way too far, I'm pretty sure this is simply... wrong. The term "fixed in a tangible medium" generally just means that the work is somehow "recorded" on some form of media. It's basically saying that ephemeral things do not get copyright, but something that is recorded on paper, film, tape or a digital hard drive or whatever is "fixed." And thus, I'm pretty sure that Judge Seeborg... is just wrong here.

There is, potentially, a different argument that might be interesting if the works are created by artificial intelligence -- at which point we'd have to remember Naruto and the fact that non-humans don't get copyright. However, assuming that the actual artistic elements in the game were created by people working for EA, and are "fixed" within the game, it's difficult to see how the judge's ruling would hold up.

The fact that the game is dynamic when playing doesn't change the fact that the elements of the game itself are fixed in a tangible medium. I wouldn't necessarily mind it if copyright did, in fact, determine that individual game play elements were not fixed, but I can't see how under the law today that's actually the case. I would imagine that EA will appeal this particular ruling, and lots of copyright holders may weigh in on problems with the ruling itself.

from the even-stranger-things dept

Last year we discussed a dispute between Roberto Escobar, brother of the infamous drug kingpin Pablo Escobar and the Medellin cartel's accountant, and Netflix over the latter's hit show Narcos. It was a strange dispute for any number of reasons, ranging from Roberto Escobar's demand for one billion dollars and the rights to alter content in future episodes to the fact that Escobar's demands didn't lay any actual claim to any intellectual property in dispute, all the way up to the fact that Narcos doesn't actually portray Roberto Escobar at all. Much like the silly dispute between Activision and Manuel Noriega over publicity rights, it was pretty much assumed that this nonsense would be done away with more quickly than a federal informant working on the inside of the cartel.

Sadly, however, this still appears to be a thing, and it's getting quite strange. For starters, Escobar's legal team claims that a capitulation of sorts by the show might be in the works. It all starts as you'd expect, with the legal team for Narcos detailing via a letter how silly Escobar's claims are, as well as how plainly false the applications Escobar subsequently made for trademarks on terms and titles from the show were.

Narcos Productions, LLC (NPL) — the company behind the series and its popular video game spinoff Narcos: Cartel Wars — contend that without NPL's "knowledge or consent, on Aug. 20, 2016, Escobar filed use-based applications to register the marks NARCOS and CARTEL WARS with the [U.S. Patent and Trademark Office] covering a range of goods and services." Those services include everything from "downloadable ring tones" and "sunglasses, decorative magnets" to "temporary tattoos, bookmarks and sheet music," according to the trademark application documents included with the letter. The letter calls the claims "fraudulent."

"For example," writes NPL attorney Jill M. Pietrini, "Escobar claims that it has used NARCOS in connection with things like 'operating a website' and 'game services provided online from a computer network' since Jan. 31, 1986. However, the internet had not been developed for widespread consumer use in 1986, nor was the capability to provide audiovisual works nor game services available at that time."

So basically the lawyers for the show are demonstrating how flimsy Escobar's attempts to setup a legal way to extort the show are. Trademark law is quite clear on the rights it affords to those who are the first to use a trademark in commerce and ought to act as a shield to these attempts. Despite that, emails obtained by THR from Escobar's legal team to Escobar himself seem to indicate that Narcos is considering just paying Escobar to go away anyway.

In a subsequent email correspondence obtained by THR and dated Sept. 1, an attorney for Escobar Inc. at Century City-based Browne George Ross LLP informs his client that he and Pietrini had a productive conversation about the claim.

"I floated the idea of paying you for an assignment or license or release related to your pre-exisiting rights in the trademarks in certain categories," Wesley writes. "She seemed to see the logic of exploring those discussions. She is going to speak with her client and get back to me."

While there is no clear commitment to a licensing deal there, the entertainment industry is notorious for paying people like this to go away, so it's not entirely out of the question. Given the clear legal framework here, however, as well as the personalities involved on the other side, it strikes me as fairly ludicrous that the show's producers would want any part of paying a former member of the cartel for no clear legal reason. Escobar's lawyers are making a lot of noise about how if Escobar chooses not to settle for whatever Narcos might be willing to pay him, then they "own the trademarks", which certainly is not remotely true here in the United States.

Adding to how strange all of this is would be the fact that a location scout for the show, Carlos Munoz Portal, was murdered in Mexico in recent weeks while scouting locations for Narcos' fourth season. While the facts surrounding Portal's death remain unknown at the time of this writing, Escobar has been rather cryptic on the topic.

Speaking Monday to The Hollywood Reporter, Escobar's 71-year-old surviving brother, Roberto De Jesus Escobar Gaviria, suggested the show's producers are not cut out for filming in such cartel-infested locales as Mexico and Colombia, adding that they would benefit from the hiring of "hitmen ... as security."

As for whether or not anyone at Escobar Inc., including Gaviria, currently has any knowledge regarding what happened to slain location scout Portal, Gustafsson would only offer, "No comment on that. But Escobar Inc. cooperates with all law enforcement."

It's as likely as not that Escobar is merely playing coy on this topic to add some gravitas to his threats and demands to Narcos and Netflix, but the comments are chill-inducing considering the source. Regardless, the merits of the trademark claims at hand remain fairly clear. Talks of Narcos capitulating or not, it's difficult to imagine a $1 Billion payday for Escobar coming anytime soon.

from the dodge-one-bullet dept

The attacks on Section 230 of the CDA are coming in all directions these days, unfortunately. Last year, we wrote about a series of troubling rulings in California that opened up the possibility of chipping away at 230's important protections of internet services. If you're new here, Section 230 says you can't blame an internet service for what a user does with that service. This should be common sense, but because people like to sue the big companies rather than the actual people doing stuff, it's necessary to stop bogus lawsuits. A little over a year ago, we wrote about one of these troubling rulings in California, where a judge ruled that publicity rights aren't covered by CDA 230.

The case is pretty complex, but the very simplified version is that a "country rap" musician named Jason Cross, who uses the stage name Mikel Knight, has made a name for himself with a weird "street team" operation that travels around the country aggressively trying to get people to buy his CDs. Some of the people who were part of the street team (or possibly who knew them) weren't happy with the way Cross treated them and set up a Facebook group: "Families Against Mike Knight and the MDRST" (MDRST = Maverick Dirt Road Street Team -- which is what Cross calls the street team). Cross sued in Tennessee to try to find out who was behind the group and demand the page get taken down. He then also sued Facebook in California because why not?

Facebook hit back with an anti-SLAPP motion, pointing appropriately to CDA 230. The court accepted those arguments on some of the claims, but rejected it on the publicity rights claims from Cross, saying that publicity rights are "intellectual property" and intellectual property is exempt from CDA 230. That's... wrong, basically. And the 9th Circuit has clearly said that CDA 230's exemption of intellectual property only applies to federal intellectual property law. Publicity rights are state law.

Thankfully, as Eric Goldman lets us know, the California state appeals court has rejected the lower court's ruling, though for other reasons than that the lower court misunderstood CDA 230. Instead, the court ruled (also correctly) that publicity rights weren't even at issue in this case. It notes that California's publicity rights law requires the party (in this case, Facebook) to have "used" the plaintiff's identity. But that didn't happen here. In fact, the only thing argued is that Facebook put ads on these pages. That's not a publicity rights issue.

Nowhere does Knight demonstrate that the advertisements appearing next to the pages used his name or likeness, or that any of the advertisements were created by, or advertised, Facebook. All he claims is that Facebook displayed advertisements next to pages created by third parties who were using Knight‘s name and likeness to critique his business practices—and their allegedly fatal consequences. While Knight claims that ―Facebook continues to place ads on all the unauthorized Facebook pages, he necessarily concedes that his name and likeness appear not in the ads themselves, but in the content posted to Facebook by third parties.

[....]

The gravamen of Knight‘s complaint is that Facebook displayed unrelated ads from Facebook advertisers adjacent to the content that allegedly used Knight‘s name and likeness—content, Knight concedes, created by third-party users. He has not, and cannot, offer any evidence that Facebook used his name or likeness in any way.

[....]

In sum, the evidence demonstrates that Facebook has not used Knight‘s identity, and any right of publicity claims fail for this reason alone. Likewise for failure to show appropriation.

The court still isn't done:

Knight has not even alleged—let alone shown—that any advertiser used his name or likeness. He thus cannot establish that anyone, let alone Facebook, obtained an advantage through use of his identity. Indeed, the evidence Knight submitted below demonstrated either that no advertisements appeared alongside the pages at issue, or that the advertisements that did appear adjacent to the content posted by third parties made no use of his name or likeness. At most, Knight has shown that Facebook allowed unrelated third-party advertisements to run adjacent to pages containing users‘ comments about Knight and his business practices. This is insufficient.

The court chooses not to address the more basic issue of publicity rights under CDA 230.

The rest of the ruling is interesting in its own right, as Cross had also appealed the parts upholding Facebook's anti-SLAPP motion, but fails badly. The court notes that it's fairly obvious that the issue involves a topic of public interest, despite Cross's claims to the contrary. And then there are some weird claims attempting to piggyback on the Barnes v. Yahoo case from years back, in which Yahoo lost its 230 immunity because an employee directly promised to remove certain content. Cross tried to argue that Facebook's terms of service promise it, too, will remove content. But... that's very different, and not what Facebook's terms of service actually say. Separately, Cross claims (to make Barnes more applicable) that Facebook privately did communicate to him that it would remove content. The court's not buying it (neither did the lower court):

Contrary to Knight‘s assertions, the complaint does not arise from "private" statements or promises made to Knight in Facebook's terms. Indeed, similar arguments made by other plaintiffs against Facebook have been rejected by district courts, in language directly applicable here: "while Facebook‘s Terms of Service 'place restrictions on users‘ behavior,' they 'do not create affirmative obligations‘ " on Facebook....

Plaintiffs' brief states that "As a requirement to signing up for Facebook, Mr. Knight had to accept Facebook's Terms of Service. Among other things, the Terms of Service—along with certain 'supplemental terms' specifically incorporated by reference—prohibited harassing and violent speech against Facebook users. These supplemental terms also made an explicit promise to Knight: 'We remove credible threats of physical harm to individuals.' Facebook also stated that '[w]e want people to feel safe when using Facebook,' and agreed to 'remove content, disable accounts, and work with law enforcement when we believe there is a genuine risk of physical harm or direct threats to public safety.'"

As will be seen, there was much language in Facebook's terms and conditions providing for Facebook's discretion vis-a-vis content on its pages. But even if statements in Facebook's terms could be construed as obligating Facebook to remove the
pages—which plaintiffs have not demonstrated—it would not alter the reality that the source of Knight's alleged injuries, the basis for his claim, is the content of the pages and Facebook's decision not to remove them, an act "in furtherance of the . . . right of petition or free speech."

The court also dings Cross for claiming that Facebook's terms say stuff they do not:

...even if Facebook's terms and community standards were the relevant statements or conduct at issue here, Knight has not identified any "representation of fact" that Facebook would remove any objectionable content. Indeed, the actual terms are to the contrary, providing in essence that Facebook has the discretion to remove content that violates Facebook policies. By way of illustration, the terms include that: "We can remove any content or information you post on Facebook if we believe that it violates this Statement or our policies." The terms also make clear that Facebook is not responsible for "the content or information users transmit or share on Facebook," for "any offensive, inappropriate, obscene, unlawful or otherwise objectionable content or information you may encounter on Facebook," or for "the conduct, whether online or offline, of any user of Facebook." As Facebook sums it up, "We do our best to keep Facebook safe, but we cannot guarantee it."

So, in the end, this is a good result, tossing out last year's bad ruling, though skipping over the CDA 230 question. And, as Eric Goldman notes, that keeps things at least a little murky:

Publicity rights law is a doctrinal mess. Courts routinely struggle with how to apply publicity rights laws to ad-supported editorial content that references or depicts a plaintiff. The appellate court got to the right place, but I don’t have much faith that future courts will do the same.

from the sue-anyone,-anywhere,-from-New-York-state dept

If there's been a good right of publicity law enacted, we've yet to see it. Ostensibly enacted to prevent celebrities' likenesses, words, etc. being used in way they wouldn't approve of, the laws are usually deployed by dead celebrities' families to censor speech. Most of the censorship activity focuses on commercial use of dead public figures, implying endorsements from beyond the grave. But the laws have also been abused to shut down biographical projects and, in one notable case, was used by a deposed and jailed dictator who though Activision should have paid him something for using his likeness in a Call of Duty game.

The New York State Legislature is considering a bill that would radically reshape its right of publicity law. Assembly Bill A08155 [PDF] would dramatically expand New York’s right of publicity, making it a property right that can be passed on to your heirs – even if you aren’t a New York resident. The bill was introduced less than two weeks ago and is being rushed through without any hearings. EFF is urging legislators to slow down before passing an unnecessary law that would threaten the freedom of expression of individuals, activists, artists, and journalists around the United States.

New York already has an abusable right of publicity law. This bill would make it worse. It expands the definition of "likeness" to include things like "mannerisms" and "gestures." It contains very few protections for free speech. It adds 40 years of postmortem protection, meaning those most likely to benefit from the law aren't those whose likeness is being used/abused, but rather their heirs.

Perhaps worst of all, it expands the law's jurisdiction, allowing out-of-state celebrities to file suits if their likenesses were used in the state of New York. This alone will encourage more litigation (even if most is dismissed early on), thanks to the internet's lack of boundaries. Simply posting something on a website anywhere could place the person posting it at risk if the website is accessible in New York. It's an invitation for forum-shopping, disguised as an extra layer of protection for public figures.

from the holy-shit dept

The Catholic Church has made some noises in recent years about attempts to modernize itself for the digital age. This modernization has taken different forms, from the Vatican attempting to create a special copyright over all things Pope some years back to selling indulgences in exchange for Pope-level Twitter followers. Somewhat strangely, the Church's last Pope actually spoke out against overreaching intellectual property, which appears to be at odds with the current Vatican administration.

That's because the Vatican recently came out and suggested that it will soon begin strictly policing the way the images of Pope Francis and certain Vatican iconography are used by third parties.

"The secretary of state will undertake systematic surveillance aimed at monitoring the way in which the image of the Holy Father and the emblems of the Holy See are used, intervening with opportune measures when necessary," the Vatican said in a statement.

To back up this declaration, the Vatican has hired the global law firm Baker McKenzie to protect its intellectual property rights, the Italian daily Corriere della Sera reported. without citing the source of the information. Baker McKenzie declined to comment.

Now, I was raised Catholic, and this all feels a little off. To start, there are some pretty clear passages from the Old Testament about making a big thing out of symbols and idols. I'm not saying that claiming dominion over the images of the Pope and Vatican symbols violates those passages, but it does seem to me that this is something of an effort to plunge His Holiness into the murky depths of celebrity culture. After all, while the language bandied about deals with copyright, much of this seems to actually be more in line with trademark and publicity rights.

"The pope's image rights are no different from those of any other famous celebrity and so it's not surprising that the Vatican is giving notice that it will protect its (intellectual property) rights as necessary," said Nick Kounoupias, the founder of an intellectual property consultancy in London.

And it's perfectly fine if the Pope wants to remake himself in the image of Lindsay Lohan. I'm just not sure it squares with the humble texts upon which his empire is built.

But what seems completely strange to me is the fear of the internet that is animating this action.

"It's not new that people were selling T-shirts of the pope, but (previously) those were probably little local vendors," said Mark McKenna, an intellectual property expert at the Notre Dame Law School in Indiana.

What's changed is the magnitude of what can be produced and how quickly it can be distributed through online platforms.

"In a world of Etsy, you are able to do it on a bigger scale," he said.

Why? It seems to me that one of the chief aims of the church has always been proselytizing and clamping down on the method in which members of the Church, or even non-members, share the images and messages of the Pope, which seems counterproductive. I'm not saying I don't see why the Vatican might bristle if those images are used to blaspheme rather than venerate the Pope or the Church. But chilling the spreading of the message to combat this seems like the wrong approach, one borrowed more from the entertainment industry than a soul-saving operation.

Or maybe it all comes down to money.

On the Vatican website, one can buy Francis medals, icons and rosary boxes. The Vatican museum boutiques offer silk ties and scarves and watches showing scenes from Michelangelo's frescoes on the ceiling of the Sistine Chapel. And that may be part of the Vatican's motivation in safeguarding Francis' face - and warning that they will challenge the copycats.

"It's probably also the case that there is some genuine commercial motivation," McKenna said. "They want to be sure they're the only ones selling this stuff."

from the game-not-over dept

Here is something you, the dear Techdirt reader, may not have known about me: I had always thought that there was only one proper spelling for the name "Lindsey." I'm not sure why I thought that, but I was certain that name was only spelled with an "e" before the "y." But, it turns out, spelling it as "Lindsay" is a perfectly common and accepted alternate spelling for the name. And the only reason that I now know that is because Linsday, with an "a," Lohan will not let her lawsuit against Take-Two Interactive -- for appropriating her likeness for several characters, which didn't actually happen -- die its final death.

First, a refresher. Lohan decided that a side quest character in Grand Theft Auto 5, which was actually an amalgam of several Hollywood starlet tropes, violated her publicity rights. She also claimed that an entirely different character that was used on some of the game's marketing and packaging was also her and also violated her publicity rights. The case wove its way through the past half-decade, largely with the court and Take-Two casting narrow eyes at the mountains of paperwork Lohan's legal team was able to produce while somehow maintaining an inability to come up with claims that were in any way credible, before the court finally tossed the lawsuit entirely. The court at the time made it clear that Take-Two's characters weren't direct appropriations of Lohan's likeness and that the parody amalgam starlet it had created was clearly protected by the First Amendment.

Lindsay Lohan has been granted an appeal in her lawsuit against the maker of the Grand Theft Auto video games. Last year, the Appellate Division Courthouse of New York State tossed the case, stating it was without merit. Her appeal was accepted by the New York Court of Appeals on 16 February.

It must be nice to have the kind of money required to keep the legal team going on a lawsuit that's been a loser at every turn. Still, it's perplexing that this lawsuit hasn't been put out of its misery at this point. The nature of the characters and their status as protected speech seems as clear cut as it gets. And, perhaps more importantly, the character that Lohan is desperate to associate herself with for the purposes of this lawsuit is one that is depicted engaging in sex acts in a public setting and being photographed doing so. I'm struggling to understand why one would want to engage in this kind of legal reach under those circumstances.

Her legal staff should be informing her that it's time to give this whole thing the Ol' Yeller treatment. Why they aren't doing so is beyond me.

from the not-how-it-works dept

Yes, yes, we know that resorting to copyright to take down speech from a politician you don't like is pretty common. Most of the time it involves musicians not liking politicians playing songs, but lately we've seen some other ones as well. Last week, for example, we wrote about a photographer successfully using the DMCA to remove the now infamous image of a bowl of Skittles that Donald Trump Jr. tweeted.

The latest, however, is even more ridiculous. The city of Phoenix, Arizona, has sent a cease & desist letter to the Donald Trump campaign, arguing (incorrectly) that Trump was violating their copyrights and publicity rights, by using imagery of Phoenix police officers in an advertisement (first reported by a local NBC affiliate in Arizona). The ad is available on YouTube, and don't blink or you might miss the Phoenix police officers. It's a pretty generic politician ad, frankly, but there's a very brief shot of Trump shaking hands with some Phoenix police officers on a tarmac somewhere (I'm guessing Phoenix...). It appears to last all of about a second.

And a city attorney named Brad Holm in Phoenix, who I don't think understands the law, has decided that this shall not stand.

For the reasons set forth below, Phoenix demands that the campaign, the candidate, and all of their affiliates and agents immediately (today) take down the ad from every medium, cease using the ad under any and all circumstances, and desist violating Phoenix’s intellectual-property rights in copyrighted materials.

Uh, what? Remember, this is a one-second clip that flashes by in an instant, where no one is going to even recognize that the cops are Phoenix cops. Can't wait for the "details" below:

First, Phoenix has not approved—and will not approve—the creation or use of any media bearing the faces and likenesses of its on-duty police officers in any political advertisement for any political candidate. The officers were unaware that they were photographed and videotaped, and they did not consent to the use of their on-duty images in any Trump (or other) campaign advertisement. The officers depicted in the ad were in uniform precisely because they were on duty performing work for Phoenix at the time. In this context, the ad unmistakably and wrongfully suggests that Phoenix and the officers
support or endorse Mr. Trump’s campaign. That is not the case. Neither Phoenix nor the
Police Department support or endorse any candidate for President of the United States or
any other political office.

First, they don't need to consent to their on-duty images being used in this manner. They are out in public and they were videotaped in public. As has been explained at great length in many other contexts (usually in the filming of police misconduct), filming police in public and making that video available is perfectly protected free expression under the First Amendment. There is no "likeness" right issues here, as that's generally only about commercial style speech.

Second, nothing in the ad suggests that the Phoenix police endorse Trump. It suggests they were on the tarmac where Trump was and they were doing their job (good for them...) and Trump shook their hands, because that's what people running for President do.

And then it gets worse:

Second, Phoenix has not consented to the Trump campaign’s use of Phoenix’s legally
protected intellectual property. The Police Department’s uniforms—specifically the badge
and insignia patches—belong to Phoenix and constitute protected intellectual property of
the City. Phoenix owns the exclusive right to use these distinctive designs under federal
and state law, including the U.S. Copyright Act. Phoenix strictly regulates the use of its
intellectual property. And Phoenix does not allow any person, entity, or political campaign
to appropriate or otherwise use its protected materials or replicas for any private purpose
such as a campaign ad.

Nah. I mean, okay, it is true that the Copyright Act only exempts federal government agencies from getting a copyright over their creative works, and does not necessarily apply to state or local governments. But it's still a stretch for the city of Phoenix to run around claiming a copyright on its uniforms (uh... uniforms are not subject to copyright, dude). While perhaps the city could claim copyright in the police badge and insignia, there is no way that this particular use isn't covered by fair use. It involves a barely recognizable snippet of a public video of police officers, used in a political campaign video. That's like textbook fair use.

As owner of this intellectual property, the City of Phoenix hereby orders the Trump
campaign to immediately cease and desist from your unauthorized use of Phoenix Police
Department uniforms, bird emblem, police badge, police insignia patch, and all other
imagery of official City of Phoenix materials and on-duty employees.

That's not how the law works. Shouldn't a lawyer understand this?

All existing copies of photos, videotape,
and other images must be immediately removed from the public domain.

Oh, look. The Phoenix city attorney who doesn't understand copyright law also doesn't know what the public domain means. Shocker.

The Phoenix City Manager has authorized me to pursue all legal remedies necessary to
stop the Trump campaign from using the City’s intellectual property. The available
remedies include both legal and equitable relief. Please contact me immediately and
advise me of the steps that you are taking to comply with this letter’s demands. I trust that
further action will not be necessary.

If it's true that the city has authorized pursuing legal remedies, then the city has agreed to waste a ton of money in an effort that will likely end in a serious judicial smackdown, and possibly Phoenix taxpayers having to shell out money to the Donald Trump campaign to pay for legal fees.

I can totally understand why the City of Phoenix might not want to be associated with Trump or his campaign. And I can certainly understand why a police department wouldn't want to endorse or even be seen as endorsing any particular candidate. That all makes sense. But (1) copyright is not the tool to use for that and (2) there is no copyright infringement here at all. Just a clueless, ignorant city attorney who is trying to abuse copyright law to do something it doesn't do.

from the mean-girls dept

Hopefully you will recall that Take Two Interactive had been facing down two lawsuits brought by Lindsay Lohan and Karen Gravano over character depictions in the company's opus, Grand Theft Auto V. Both filed suit over publicity rights and likeness concerns in New York. Lohan claimed that a character in the game that evaded paparazzi after having sex in public and made some oblique references to similar-sounding movies that Lohan had acted in, along with a female character on the game's cover art, were both ripping off her personage. Gravano, meanwhile, claimed that a different character, one which made references to starring in a reality show about mobster wives and evading mob retribution, was ripping off her personage. While both suits failed to address the fictional differences in the characters, which were both composite characters parodying their celebrity archetypes, Take Two attempted to defend itself with those facts and tried to get the case dismissed. Strangely, the court at the time allowed the case to move forward...

On Thursday, New York's appellate division first department took a look at both this case as well as one involving ex-Mob Wives star Karen Gravano, who brought a similar lawsuit against Take-Two over Grand Theft Auto V. Gravano had filed a $40 million complaint over the character of "Andrea Bottino," who allegedly used the same phrases the plaintiff did, had a father who was a government informant and had a mutual connection with reality television. Gravano's suit was given a green light by the same trial judge in the Lohan lawsuit.

The court's decision makes it clear that both lawsuits, brought for publicity rights reasons, don't stand up to New York's law. First and foremost, this is because the characters in the game aren't a direct composite of either plaintiff.

Both Gravano's and Lohan's respective causes of action under Civil Rights Law § 51 "must fail because defendants did not use [plaintiffs'] name, portrait, or picture'" (see Costanza v Seinfeld , 279 AD2d 255, 255 [1st Dept 2001], citing Wojtowicz v Delacorte Press , 43 NY2d 858, 860 [1978]). Despite Gravano's contention that the video game depicts her, defendants never referred to Gravano by name or used her actual name in the video game, never used Gravano herself as an actor for the video game, and never used a photograph of her (see Costanza at 255; see generally Wojtowicz at 860). As to Lohan's claim that an avatar in the video game is she and that her image is used in various images, defendants also never referred to Lohan by name or used her actual name in the video game, never used Lohan herself as an actor for the video game, and never used a photograph of Lohan (see Costanza at 255).

And, second, because the kind of depiction being discussed in these cases is protected First Amendment speech, as should have been obvious from the outset.

Even if we accept plaintiffs' contentions that the video game depictions are close enough to be considered representations of the respective plaintiffs, plaintiffs' claims should be dismissed because this video game does not fall under the statutory definitions of "advertising" or "trade" (see Costanza at 255, citing Hampton v Guare , 195 AD2d 366, 366 [1st Dept 1993], lv denied 82 NY2d 659 [1993] [stating that "works of fiction and satire do not fall within the narrow scope of the statutory phrases advertising' and trade'"]; see generally Brown v Entertainment Merchants Assn. , 564 US 786, 790 [2011] ["(l)ike the protected books, plays, and movies that preceded them, video games communicate ideas . . ." and deserve First Amendment protection]). This video game's unique story, characters, dialogue, and environment, combined with the player's ability to choose how to proceed in the game, render it a work of fiction and satire.

Meanwhile, one imagines that the legal teams for both women have been handsomely paid for not informing their respective clients of the futility of these lawsuits from the outset. I mentioned early on in these posts that the legal team for Take Two ought to have been able to stroll into court in their underwear, scream "Parody! First Amendment!" and immediately walk out of the courtroom victorious. That it had to go to much more trouble than that is unfortunate, but it's still good to see the court get this right.

from the legal-fantasies-are-the-worst-fantasies dept

Javon Marshall -- a former college athlete spearheading a putative class action against several broadcasters for uncompensated use of his likeness -- has just seen the Sixth Circuit Appeals Court send him (and everyone "similarly situated") back home without a parting gift.

Marshall -- like many others who believe the mere existence of intellectual property protections entitles them to a paycheck -- sued a long list of broadcasters for allegedly violating the Lanham Act and the Tennessee "right of publicity" law by not paying him and other athletes for using his name and "image" in game broadcasts and advertising. Marshall also claimed the NCAA's waiver student-athletes sign is "vague and unenforceable." That may very well be, but that claim was never addressed by the plaintiff and the NCAA was never a defendant. It only served as an introduction to a long list of alleged violations [PDF] that the lower court determined to be baseless accusations.

The Appeals Court makes short work [PDF] of Marshall's attempt to have the lawsuit revived, pointing out in a wonderful opening paragraph just how unrealisitic his claims are. The first sentence alone indicates how far from legal reality Marshall's class action lawsuit strayed.

The theory begins with the assertion that college football and basketball players have a property interest in their names and images as they appear in television broadcasts of games in which the players are participants. Thus, the plaintiffs conclude, those broadcasts are illegal unless licensed by every player on each team. Whether referees, assistant coaches, and perhaps even spectators have the same rights as putative licensors is unclear from the plaintiffs’ briefs (and, by all appearances, to the plaintiffs themselves).

Very briefly addressing the plaintiff's arguments, the court waves them away in two sentences, offering its wholehearted support of the lower court's decision.

In any event, the plaintiffs seek to assert claims under Tennessee law, the Sherman Act, and the Lanham Act on behalf of a putative class of collegiate players nationwide. The defendants—various college athletic conferences and television networks, among others—responded in the district court with a motion to dismiss, which the court granted in a notably sound and thorough opinion.

The court goes on to call the plantiffs' claims under Tennessee law "legal fantasy," pointing out that the state's "right of publicity" specifically exempts sports broadcasts. The plaintiffs' common-law claim asserts a right never granted by the state. The Sherman Act antitrust claim fails because if a right doesn't exist, it can't be licensed in a noncompetitive fashion. The court saves its best comment for Marshall's trademark claim.

That leaves the plaintiffs’ claim under the Lanham Act, whose relevant provision bars the unauthorized use of a person’s name or likeness in commerce when doing so “is likely to cause confusion” as to whether the person endorses a product. 15 U.S.C. § 1125(a)(1)(A). The theory here is that if, say, ESPN shows a banner for “Tostitos” at the bottom of the screen during a football game, then consumers might become confused as to whether all the players on the screen endorse Tostitos. Suffice it to say that ordinary consumers have more sense than the theory itself does.

This futile lawsuit was perhaps encouraged by the relative success of a similar lawsuit against Electronic Arts for using the "likenesses" of players in its sports videogames. However, there's a crucial difference that factored into the Ninth Circuit Appeals Court's decision on behalf of the players: California's oft-abused "right of publicity" law which doesn't contain the same exemptions as Tennessee's. And in that case, there's still hope of a rehearing which might tilt the court towards finding California's law must defer to the First Amendment, rather than the other way around.